- (1.) A. N. Diksbita, J. Appellant, Sewa Ram, has preferred this criminal appeal against the judgment and order dated 24-3- 1979 passed by III Addl. Sessions Judge, Hamirpur in Session Trial No. 50 of 1976 convicting the appellant under Sections 392/397, I. P. C. and sentencing him to undergo 7 years' R. I.
(2.) THE facts of the case reveal that on 4-1-1975 at about 5. 30 p. m. , when Smt. Phoolrani wife of Gayadin, her husband Gauri Shanker and Hargobind son of Gauri Shanker of village Galiah, police station Rath, district Hamirpur were returning home from their field, two miscreants armed with pharsa way laid and threatened them near the culvert of the Canal that in case they raise any alarm, they would be done to death. THEy stopped Smt. Phoolrani and Hargovind and forcibly relived Smt. Phoolrani of the silver Paijana. On raising alarm by Smt. Phoolrani and Hargovind, Gauri Shanker, who was coming behind them, and Narpat Singh residents of Galiah reached the place of incident. THE miscreants were chased. THEy ran towards Kaithi Badanpura. THE cost of Paijanas was estimated around Rs. 1200/. A written report of the incident was lodged by Gauri Shanker (PW 1) on 5-1-1975 at 3-00 p. m. at police station Rath. The distance of Police Station from village is 3 miles. Delay in holding the F. I. R. is around 22. 00 hours. The investigation started and appellant Sewa Ram was arrested by the Police on 6- 1-1975 from his village Kaithi Badanpura and lodged in jail. He was put to identification parade in jail, where PW 1 Gauri Shanker, PW 3 Narpat identified him correctly. After the completion of the investigation, the appellant was pro ceeded against. The prosecution in support of its case examined two eye-witnesses PW 1 Gauri Shanker and PW 3 Narpat. PW 1, Gauri Shanker has supported the allegations, as contained in the F. 1. R. He has, however, admitted that he was walking behind at a distance of about 200 paces. He has also stated that he chased the miscreants for some distance, but did not proceed further due to fear as he was not having any arm with him. It was on account of the fear that he did not lodge the report in the night. He has also admitted that he got the report prepared on the next morning by Man Singh and then handed it over at the police station. He has categorically stated that he had recognized the appel lant in the identification parade which was conducted after about 6 months. The only explanation that he has furnished about the delay in lodging the F. I. R. was that his delay was on account of fear. PW 2 Man Singh is his brother who has prepared the F. I. R. PW 2 has stated that the F. I. R. was prepared by him on the dictate of PW 1 Gauri Shanker at about 10 a. m. in the morning of 5-1-1975. It appears very surprising that when Jewellery of the daughter-in-law would be looted, still the father-in-law (PW 2) Gauri Shanker would get the report pre pared around 10/11 a. m. No promptness has been shown. Even otherwise the distance from the village to the Police Station is only around 3 miles. If this report was prepared as has been stated, by PW 2 Man Singh around 10 or 11 a. m. , even then the time taken in lodging the report at 3-OJ pm. is not convict ing. Apparently, not plausible explanation is forth-coming as regards the delay in lodging of the F. I. R. Other cardinal fact which cannot be lost sight of, is that PW 1 Gauri Shanker was walking at a distance of 200 paces behind Smt. Phoolrani and his son Hargovind. It was the month of January. The sun-set on 4-1-1975 was at 5-25 p. m. , while the incident is that of 5-30 p. m. as is dis closed in the F. I. R. The learned counsel for the State has submitted that even after the sun-set a person can be recognized, but it is difficult to accept this in view of the fact that dusk had descended and in village atmosphere becomes dusty on account of the movement of the cattle and people at that time.
(3.) THE date of occurrence is 4-1-1975. THE appellant was put to identi fication parade on 28-6-1975. Thus sufficient long interval of time had elapsed between the date of occurrence when PW 1 Gauri Shanker and PW 3 Narpat had seen the appellant Sewa Ram for a while and the date of that test identification parade. No doubt PW 1 Gauri Shanker and PW 3 Narpat had correctly identified appellant Sewa Ram at the parade. It is admitted that about 6 months had elapsed. If PW 1 Gauri Shanker has seen the appellant Sewa Ram, then there appears to be no reason as to why the descriptions of his feature were not men tioned in the F. I. R. Even in his statement, he has no where disclosed the features of appellant Sewa Ram. In the absence of any such description in the F. I. R. , it would not be safe and proper to act upon the identification of appellant Sewa Ram. It is thus difficult to place any reliance on the test identi fication parade. Apparently, the visibility at that time would be too poor and it may not be possible for PW 1 Gauri Shanker to recognize the appellant Sewa Ram from such a long distance. This fact further fortifies that the F. I. R. does not contain the description of the appellant Sewa Ram. Had he recognized, as he has stated in his statement and as also identified him, it is incomprehensible as to why this fact was not stated in the F. I. R. about the description of the appellant Sewa Ram. PW 1 Gauri Shanker is a literate man. No explanation is forth-coming as to why the report was prepared by PW 2 Man Singh, when the property of his daughter-in-law was looted. It is normal conduct that PW 1 Gauri Shanker could have prepared the report in the night or immediately the next morning instead of waiting and getting it prepared through Man Singh. This seems to have been introduced only to explain the delay in lodging the F. I. R. Pw 1 Gauri Shanker has stated that he is literate. He is farmer by profession. It may appear to be starting that he could remember and could identify Sewa Ram after 6 months. The delay in the identification of the appel lant thus becomes dubious. Implicit reliance cannot be placed on the statement of Pw 1 Gauri Shanker.;